Healing the wounds of the civil war: The constitutional review process in Sierra Leone
The Constitutional Review Committee adopted a draft report proposing a host of constitutional amendments based on unprecedented popular involvement. The proposals are subject to government and parliamentary approval, and finally a referendum. The specter of potential changes makes the outcome of the reform process unpredictable – writes Solomon Sogbandi, a member the Committee.
The current constitution of Sierra Leone came into force in 1991, a few months after the civil war started. The constitution abolished the one-party system established in 1978 and heralded a multi-party democratic dispensation. Nevertheless, the constitution was adopted in an autocratic environment with little popular input. Moreover, the constitution failed to adequately address issues of accountability; socio-economic justice and rights; gender equality; the death penalty; the over-centralization of powers in the executive; natural resource governance and the environment; and the role and status of chiefs.
After initial efforts to revise the constitution failed in 2008, a new reform process has been ongoing since 2013. The roots of the constitutional reform process trace back to the 1999 Lome Peace Accord aimed at ending the Sierra Leonean civil war. The Accord provided for a review of the constitution to address the root causes of the conflict and to reflect the needs and aspirations of the people. The support for a new constitution gained momentum following a 2004 report of the Truth and Reconciliation Commission (TRC), a transitional justice mechanism established to heal the wounds of the conflict, which identified the lack of wide public consultation and participation in the drafting process as a scar on the legitimacy of the 1991 constitution. The Commission recommended the adoption of a new constitution through a wide and thorough consultative process.
In consideration of these suggestions, the former President of Sierra Leone Ahmad Tejan Kabbah established a Commission to Review the Constitution of Sierra Leone in January 2007. The Commission was composed of representatives of a wide range of groups, including political parties, the media, the judiciary, civil society and professional organizations, traditional and religious entities, students and academic institutions, and security forces. The Commission released its report proposing several amendments in January 2008. Nevertheless, following the end of Kabbah’s second term in September 2007, newly elected President Ernest Bai Koroma focused on his electoral pledges prioritizing the economy, infrastructure, energy, and other public services.
A renewed effort towards constitutional reform gathered momentum after the 2012 Sierra Leone Conference on Development and Transformation recommended a review of the constitution to capture critical issues including the participation of women in decision-making, and the establishment of a peaceful, politically stable and democratic country.
Following his reelection in 2012, President Koroma underscored the need for a full-scale review of the 1991 constitution. Accordingly, the President launched a broad-based Constitutional Review Committee (CRC) in July 2013 to lead a participatory reform process. The CRC conducted unprecedented levels of public consultations across the nation. Nevertheless, the Ebola epidemic temporarily disrupted the process in 2014. Moreover, the government redirected all available funds to battling the epidemic. To make up for the disruptions, the term of the CRC, initially planned to end in March 2015, was extended to March 2016.
In February 2016, the CRC released a draft report based on the outcome of the first round of public engagements proposing a number of significant amendments to the 1991 constitution. The proposals provide the basis for a second validation consultation with the public. Based on the outcomes of the second round of public engagement, the CRC will rework the draft and submit the final report to the government.
Composition of the Constitutional Review Committee
The CRC is composed of 80 members representing various stakeholders including political parties, civil society organizations, the media, and key independent bodies, such as the bar association. The attorney general and minister of justice invited various groups to send representatives and invited individuals to submit applications for membership. The two offices shortlisted and finally selected the members of the CRC. Unlike in the 2007 review process, the security forces do not have direct representation in the CRC. Nevertheless, the CRC solicited the views of the security forces, including through position papers.
The CRC faced initial criticism due to concerns over the dominance of political parties and the low representation of civil society groups - 10 of the 80 members. Notable omissions include the absence of representation from prominent organizations, such as the Sierra Leone Teachers Union and the Conference of Principals. Overall, political parties dominate the composition of the CRC. The ten registered political parties have 44 representative - more than 50% of the CRC’s membership. The two biggest parties in parliament have six representatives each, while the other eight have four members each. The CRC takes decisions through majority vote. The dominance of political parties raised concerns that they may hijack the review process to advance their interests. Nevertheless, since topical issues affect the generality of the population, including opposition parties, no single group had the numbers to manipulate the process.
Public participation in the review process
The mandate of the CRC is to “review”, rather than to “rewrite”, the 1991 constitution and the recommendations in the 2008 report, and to propose constitutional amendments based on the views of the people. In February 2016, the CRC released its draft report to provide the basis for public validation. The draft report contains numerous amendment proposals. The proposed amendments drew on the outcomes of extensive public engagement, including through radio and television programming and SMS services to subscribers of major mobile service providers. The public consultation process was complemented with studies of constitutions of other countries (more than 75 constitutions considered), and tours to Kenya and Ghana to draw on their recent experiences in constitutional reform and implementation. The CRC also conducted consultative expert meetings and received a number of position papers from CSOs, individuals, social and political groups, parliamentarians, government entities, and international and local organizations. CSOs supported the public engagement efforts, although funding and other restrictions limited their efforts.
Overall, the constitution review process has been more participatory and inclusive than the 2007 reform effort. The ongoing public validation process further strengthens the legitimacy of the process. Nevertheless, the CRC abandoned initial plans to hold public consultation at chiefdom levels, the lowest administrative structures, due to funding limits. Consultations at the chiefdom level would have allowed better representation of the views of traditional authorities and the majority of the population, particularly in rural areas. Instead, the CRC conducted consultations at the district level, representing much larger geographical areas and population. In particular, public consultation in some parts of the country, such as the western region, was by invitation, potentially limiting participation only to well-connected citizens.
Despite the time extension, the lack of funds also restricted the ability of the sub-committees to conduct visits to various parts of the country. In particular, the extensive use of questionnaires and written submissions restricted the level of participation of women due to higher levels of illiteracy among women. With a view to address these concerns, the CRC secretariat encouraged and provided some financial support to civil society organizations to undertake consultations in the regions primarily on critical issues and public proposals.
Major proposals for constitutional amendment
The draft report includes a number of crucial proposals for amendment. In particular, it recommends the inclusion of four new chapters dealing with: local government and decentralization; citizenship; land, natural resources and the environment; and information, communication and the media. The report also includes proposed amendments to existing provisions of the constitution. Overall, the review process largely captured most of the key issues proposed by the people. Nevertheless, to ensure that the constitution focuses on major issues, the CRC left out some proposals for regulation in ordinary legislation.
The draft report proposes the inclusion of provisions guaranteeing citizenship rights to anyone one of whose parents are Sierra Leonean. The 1991 constitution only confers automatic citizenship on children born of Sierra Leonean fathers, but not Sierra Leonean mothers. The proposed amendment also abolishes the requirement that only those of “Negro African descent” could be citizens of Sierra Leone, thereby delinking citizenship from considerations of race and gender.
The proposals also include a suggestion to recognize local governments in the constitution. Such recognition will entrench the powers and resources of local governments. The proposal is in line with the recommendations of the TRC and the Lome Peace Accord. Notably, there were controversial suggestions that local council elections should be exclusively non-partisan. Under current laws, local elections are not exclusively non-partisan, although independent candidates can participate in local and legislative, but not presidential, elections.
In terms of gender, the report removes discriminatory provisions creating, for instance, exceptions to the prohibition of discrimination in relation to adoption, marriage, divorce, burial, devolution of property on death, or other interests of personal laws. The draft also enhances women’s political participation through guarantees of gender equality and the establishment of a gender equality and women’s empowerment commission. The CRC has been criticized for failing to include specific methods of ensuring women’s political participation, such as 30% quota for public offices, on the ground that that could be achieved through ordinary legislation.
The proposed amendments also include guarantees of justiciable socio-economic rights such as education, health and shelter. These rights were either absent or non-justiciable in the 1991 Constitution.
With a view to give effect to the principle of separation of powers, the proposed amendments recommend that the president should not be a member of parliament, as is currently the case. Moreover, it proposes that the judicial and legal service commission, rather than the president, should appoint the chief justice. The report also recommends the separation of the office of the attorney general and the ministry of justice to allow the former to exercise her/his prosecutorial powers without government interference.
In response to the political debacle involving the current president and his former vice president, where the president dismissed the vice-president after the latter’s expulsion from the ruling party, the draft report specifically proposes that the president and the vice-president should not be removed from office simply on the basis of loss of political party membership after assumption of office. Similarly, the proposals retain the two term presidential limit, ending initial concern that the president could use the reform process to extend his reign.
Deviating from the 2008 review report, the CRC rejected proposals for the establishment of a senate because of its implications for funding, the potential to delay law-making processes, and concerns that senate seats may be used to reward party loyalists. Instead, the CRC proposed the establishment of a separate Paramount House of Chiefs to discuss issues affecting traditions and traditional authorities. The current arrangement, where chiefs are members of parliaments (chief’s block), politicizes the offices and enhances their links to the government of the day, potentially undermining the neutrality and independence of chiefs. The proposals provide that the composition of the House should ensure the full participation of women, although it leaves the specific mechanisms for such inclusion to legislation.
In its 2004 report, the TRC made an imperative recommendation towards the total abolition of the death penalty in response to the history of politically motivated death sentences. Considering divisions among the public concerning the death penalty, the CRC did not make final proposals. Instead, the issue has been returned to the people for further consultation and validation. A final proposal will be made upon the completion of the ongoing public validation exercise.
The CRC is currently conducting consultations to validate the draft report and to resolve contentious issues, such as the death penalty. Because the validation process has taken more time than expected, the CRC has requested an extension of its term to continue discussions on contentious proposals. Following the finalization of the validation consultation, the CRC will make adjustments based on public comments and submit a final report to the government, which will consider and transfer the report to parliament. Upon parliamentary approval, the proposed amendments will be presented to a referendum to adopt or reject the full range of amendments. Initial considerations to organize multiple referenda on each of the thematic areas were rejected due to resource and time implications. The sheer number of the proposals necessitates active engagement by the CRC, state institutions and CSOs – as “conscience” of the people - to explain to the people the key proposals for amendment to enable them to make informed decisions.
If approved in a referendum, the constitution will enter into force upon the assent of the president. The date of the referendum is yet to be set. It is possible, even likely, that the government and/or parliament may make modifications to the CRC’s final draft. Indeed, influential members of the ruling party have criticized the draft and suggested provisions to allow presidents who have served two terms to be allowed to stand for election after an interval, and for the appointment of the chief justice by the president, instead of the judicial and legal service commission. Moreover, the government is unlikely to approve restrictions to the power of the president to remove the vice-president on the ground of loss of party membership. Other issues that will prove contentious include issues of citizenship – particularly because of concerns with people of Lebanese origin, representation of women, abortion, non-partisan local elections, and the establishment of a house of chiefs. Despite the optimism for a new Sierra Leonean constitution, the specter of potential changes renders the outcome of the referendum uncertain.
Solomon Moses Sogbandi is a member of the CRC and Director of Amnesty International, Sierra Lone.